Case details

Nerve injury a rare complication of vascular surgery: defense





Result type

Not present

nerve, neurological
On Oct. 12, 2015, plaintiff Sylvia Childers, 68, a retiree, underwent an endarterectomy: surgical removal of arterial plaque. The procedure addressed her right carotid artery, and it was performed by vascular surgeon Dr. Jose Soto-Velasco, at Mercy General Hospital, in Sacramento. Soto-Velasco had evaluated stenosis in Childers’ right common and internal arteries on Oct. 6, 2015, and he recommended that Childers undergo the surgery to address calcified stenosis. After the surgery on Oct. 12, 2015, Soto-Velasco saw Childers in the recovery room and conducted an examination and assessment of Childers, bilaterally, to see if there was any noted gross neurologic (focal or otherwise) deficits, especially those involving the face and/or tongue. No neurologic deficits were noted, and Childers did not exhibit reperfusion syndrome symptomatology. Childers was observed overnight and determined to be neurologically intact. As a result, Childers was discharged from Mercy General Hospital with wound-care instructions on Oct. 13, 2015. She was asked to follow-up with Soto-Velasco on an outpatient basis in five days. Childers returned to see Soto-Velasco at his office on Oct. 20, 2015. During that visit, Childers’ sutures were removed by Soto-Velasco, and the incision was referenced to be healing properly. Childers next saw Soto-Velasco at his office on Oct. 27, 2015, and then again on Nov. 24, 2015. During the November 2015 visit, Childers reportedly claimed to be improving and doing better. Her carotid scar was improving, and the plan was to move forward with a left carotid endarterectomy once she was fully recovered from the left subclavian artery stent placement that was completed five days prior at Bakersfield Heart Hospital, in Bakersfield. On Feb. 9, 2016, Childers presented to Central Cardiology, in Bakersfield, and saw a cardiologist that she saw for previous cardiac procedures. During the visit, Childers complained of pain across her right shoulder area. As a result, the cardiologist referred Childers for an evaluation of her right shoulder dysfunction by an orthopedic surgeon who had performed bilateral shoulder arthroscopies on Childers in 2000 and 2001. The orthopedic surgeon later diagnosed Childers as having a right winged scapula and pain in both shoulders, and recommended a nerve conduction study/electromyography to evaluate the status of the nerves in the right shoulder, including the spinal accessory nerve, among others. On Feb. 23, 2016, Childers returned to see Soto-Velasco at his office. During the visit, Childers complained about right shoulder pain and dysfunction. She also told Soto-Velasco that she had seen the orthopedic surgeon who had done a study and apparently related to her that he felt her condition was related to a spinal accessory nerve injury. Soto-Velasco examined Childers’ right shoulder/upper extremity and found that she could not raise her arm higher than the level of her shoulder. Childers reportedly told Soto-Velasco that she thought the injury was related to the carotid endarterectomy, which Soto-Velasco thought was unlikely given the location and trajectory of the spinal accessory nerve. Soto-Velasco did not move forward with further evaluation of Childers’ right shoulder complaints and, instead, discussed with Childers the potential for a future left carotid endarterectomy. Three days later, Childers underwent a nerve conduction study and electromyography with a neurologist, who confirmed that the study showed evidence of trapezius muscle atrophy, sternocleidomastoid atrophy and a suspected spinal accessory nerve injury. No other nerves, outside of the spinal accessory nerve, were identified by the neurologist as having any abnormalities. The neurologist also did not formulate an opinion relating to the cause of the spinal accessory nerve injury or the time frame upon which the injury occurred. Childers returned to see the orthopedic surgeon on March 10, 2016. They reviewed the results of the NCS/EMG testing, and the orthopedic surgeon assessed Childers as having evidence of a spinal accessory nerve injury, which was causing Childers’ right shoulder/upper extremity symptomatology and winged scapula. The orthopedic surgeon’s plan was to contact a surgeon in Los Angeles who performed peripheral nerve repairs and refer Childers to that provider for further care and treatment. Childers once against returned to Soto-Velasco on March 15, 2016. During that visit, Soto-Velasco’s patient visit note indicated that Childers’ arm was slightly better and that Childers was contemplating the possibility of a nerve graft. Discussions were again had regarding the potential need for a left carotid endarterectomy, but further testing done in Soto-Velasco’s office showed only 50 percent stenosis in the left, internal carotid artery. As a result, Soto-Velasco determined that intervention by way of a carotid endarterectomy was not recommended, given the 50 percent stenosis figure and lack of ipsilateral symptomatology. He sent Childers for a follow-up appointment in six months, for Oct. 11, 2016, but Childers never returned to see Soto-Velasco. Childers sued Soto-Velasco, alleging that Soto-Velasco was negligent in the performance of the Oct. 12, 2015, surgery and negligent in the post-operative care of his patient. Childers also alleged that Soto-Velasco’s negligence constituted medical malpractice. Plaintiff’s counsel contended that Soto-Velasco utilized improper surgical techniques during the Oct. 12, 2015, procedure such that it resulted in to several of Childers’ nerves and muscles in her right shoulder and spine. Counsel also contended that Soto-Velasco was negligent in his post-operative care and management of Childers. Childers and her daughter claimed that they told Soto-Velasco about Childers suffering from right, upper extremity dysfunction during the Oct. 20, 2015, visit, but that it was not documented in Soto-Velasco’s chart. They also claimed that they again told Soto-Velasco at his office on Oct. 27, 2015, that Childers was suffering from right, upper extremity dysfunction, but that it was again not documented in Soto-Velasco’s chart. Childers further claimed that she told Soto-Velasco that she thought the injury was related to the carotid endarterectomy, but Soto-Velasco still did not move forward with further evaluation or treatment of Childers’ right shoulder complaints. Plaintiff’s counsel argued that if Soto-Velasco had moved earlier with a referral to a peripheral nerve specialist, then Childers’ spinal accessory nerve injury could have been addressed and potentially minimized with interventional neuroplasty procedures. Soto-Velasco acknowledged that Childers’ spinal accessory nerve was likely inadvertently injured during the subject procedure when he moved the sternocleidomastoid muscle to exposure the carotid bifurcation. He likewise acknowledged that an injury to the spinal accessory nerve can result in sternocleidomastoid and trapezius atrophy, which can lead to the development of a winged scapula, which he did not dispute that Childers had at time of the trial. However, defense counsel argued, through expert testimony, that Childers’ carotid endarterectomy was indicated and that Soto-Velasco’s performance of the carotid endarterectomy met the standard of care. Counsel also argued that the risk of a spinal accessory nerve injury is rare but recognized complication (in the range of 0.3 percent) and that such an injury can occur during surgery in the absence of negligence. In regard to Childers’ post-operative case, defense counsel called Childers’ primary care provider, an internist, to testify at trial. The physician testified that when she saw Childers on Nov. 2, 2015, Childers complained of right, upper extremity dysfunction. However, the physician claimed that she did not immediately suspect a nerve injury of some kind and, rather, thought that Childers, who had a past history of bilateral shoulder arthroscopy with osteophyte removal, may have had a frozen shoulder secondary to the positioning during the carotid endarterectomy. The primary care provider testified that as a result, she ordered an X-ray of the right shoulder, but she admitted that it would not demonstrate evidence of potential nerve damage. The physician further testified that she saw Childers again on Dec. 9, 2015, and started Childers on a physical therapy regimen for her right, upper extremity, but the physician claimed she still did not suspect any nerve damage at that point. Soto-Velasco claimed that he did not recall Childers making any such dysfunction-related complaints during the visits to his office on Oct. 20, 2015, and Oct. 27, 2015, and he agreed that no such notes were made in the patient’s charts during those visits. He also claimed that Childers only complained to him about right shoulder pain and dysfunction for the first time on Feb. 23, 2016, but that he did not move forward with further evaluation of Childers’ shoulder complaints because Childers’ complaints were already being managed by her orthopedic surgeon and because he felt, at that time, that Childers’ complaints were unlikely to be connected to the Oct. 12, 2015, procedure. Defense counsel contended that Soto-Velasco reasonably managed Childers. Counsel argued that when Childers brought her complaints of having functionality issues with her right, upper extremity to Soto-Velasco’s attention for the first time on Feb. 23, 2016, it was reasonable to not manage that condition, as it was already being treated by Childers’ orthopedic surgeon., Childers claimed she sustained to her spinal accessory nerve, trapezius muscle, and sternocleidomastoid muscle. She also claimed that MR neurography and other imaging studies showed evidence of to the anterior scalene muscle, middle scalene muscle, levator scapular muscle, serratus anterior muscle and deltoid muscle, as well as to the long thoracic nerve, dorsal scapular nerve, axillary nerve and hypoglossal nerve. Childers alleged that as a result, she suffered atrophic changes/weakness to those muscles, affecting her right, upper extremity. As a result, she had a number of visits with her treating neurosurgery expert and underwent two sets of nerve injections to her neck to try to reduce scar tissue and inflammation around the allegedly injured nerves. The plaintiff’s treating neurosurgery expert testified about his evaluation of Childers and his attempt to treat Childers’ right spinal accessory nerve injury following her March 15, 2016 visit with Soto-Velasco. However, he was largely unsuccessful in alleviating the Childers’ right, upper extremity complaints. Childers testified that her right, upper extremity issues greatly affected her activities of daily living, including housework, gardening, bathing, curling her hair, baking, and lifting heavy pots and pans. She also claimed that she could sometimes “push” herself through some of the pain, but that she would “pay for it” the next day. She alleged that as a result, she requires future surgery. The plaintiff’s treating neurosurgery expert did not take Medicare and, therefore, by the time of trial, had charged Childers over $17,000, out-of-pocket, for medical care. The expert also estimated that the costs associated with Childers’ future surgery totaled $15,000 in surgical fees and $150,000 in facility fees. The parties stipulated that Childers’ past medical costs totaled $17,260. As a result, plaintiff’s counsel asked the jury, during closing arguments, to award Childers $17,260 in past medical costs and $165,000 in future medical costs. No specific dollar amount was requested for non-economic damages for Childers’ alleged past and future pain and suffering. Defense counsel disputed Childers’ alleged future medical costs, and moved to exclude the plaintiff’s neurosurgery expert’s testimony as to the alleged reasonable value of the surgical and facility fees. However, the motion in limine was denied by the court.
Superior Court of Kern County, Kern, CA

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